OPINION: Few people expected the Government's decision on compensation for David Bain, whatever it was, would be an end to the case, but the latest developments in the case have guaranteed that it will run and run.
The only other case in recent history at all similar, the murder case in which Arthur Alan Thomas was twice convicted but later pardoned and given compensation, was straightforward by comparison.
The decision by the Minister of Justice, Judith Collins, to seek a "peer review" of a report she had received from a former Canadian judge, Justice Ian Binnie, who had been asked to consider Bain's application for compensation, was remarkable enough. Binnie's intervention this week - with an ill-judged response to the minister's announcement of her reasons for seeking the review - vaults events into the realms of the extraordinary.
Collins' announcement explaining why she had sought the review was candid, even sharp, but in the circumstances reasonable. The fact that she has had Binnie's report since September had raised expectations that the matter would be put before the Cabinet and a decision announced before Christmas. It has also become well known, and has not been denied, that the report is favourable to Bain. The reasons for the delay needed to be explained and Collins did so in a characteristically forthright style.
Binnie's report, she said, appeared to contain "assumptions based on incorrect facts, . . . showed a misunderstanding of New Zealand law . . . and lacked a robustness of reasoning used to justify its conclusions". Binnie, perhaps unused from his lengthy term on Canada's highest court to such direct comment, was stung by Collins' remarks into responding. It was an unwise move.
By convention, judges never comment on their decisions once they are delivered. The decisions are taken to contain all the facts and reasoning required to be able to speak for themselves. Binnie is no longer a judge, of course, but in this procedure he is acting as one. Once he had delivered his report to Collins in September the function for which he was hired was over and he should have remained aloof from anything that ensued, whatever it was. It is unseemly and undignified of him to get into the mud and the dust of the political arena in the way he has done.
If nothing else, it raises misgivings about his judgment. Fourteen long paragraphs in response to a terse couple of sentences from the minister looks weirdly disproportionate. In addition, questionable statements Binnie makes, particularly concerning the alleged views of the Privy Council on Bain's guilt or innocence, look faulty enough to suggest that Collins' doubts about the report are well-founded.
Collins said yesterday she was considering releasing the report along with the review of it this week. She says that both should be released together. While that would be ideal, she should go ahead and release Binnie's report (both the original and the two subsequent versions that Binnie has given her unsolicited) whether the review is ready or not. The tumult is not going to die down, and rumour and surmise will fill the vacuum if she delays.
It was a mistake from the outset to contract the work out to a foreign judge. Few other countries nowadays would even consider it. The decision on compensation is, in any case, ultimately a political one and, as this episode shows, it has not become any less so by farming part of it out to someone outside the country.
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